What is Fair Use

December 10, 2019 by Zuza Ciszewska in Art Tips


What is fair use?

Fair use is a part of copyright law which creates a limited right for individuals to use someone else’s existing copyrighted work so long as that use is in a reasonable manner.

In simpler words, if you create something based on someone else’s work, there is a chance that your use of that work could be considered a fair use of that existing work. In such cases, your fair use shields you, the creator, from any legal liability for your use of their work.

Of course, when your creation will be considered a fair use can be difficult to predict. While it will depend a lot on the purpose for which you chose to use some (or all) of someone else’s work, the owner of the work you use may not view your use as “fair” as you do. So the safest route is to seek permission from the copyright owner or speak to a lawyer before selling your artwork if it’s based on someone else’s work.

How do I know if my artwork is a fair use of someone’s existing work?

To be honest, every situation is different and various factors may determine whether your work is fair use or not. Which is why it’s always important to speak to someone who knows this stuff, like a lawyer. But generally, there are four factors that are balanced and weighed against each other to determine whether your use is fair:

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:

According to U.S. law, if your work is dedicated to a purpose such as a commentary, search engines, criticism, parody, news reporting, research, and scholarship, or if your work “transforms” the existing work, then this leans in the direction of your use being a fair use. In other words, if your work is devoted to a bigger or strictly personal cause it is more likely to be found fair under U.S. law. And, generally, if you commercialize (e.g., sell) your work, it is more likely not to be considered a fair use.

Nature of the copyrighted work: 

This factor considers whether the other person’s content you used is more factual in nature (documents, articles) or instead based on a creative idea (art, movies, music). Generally speaking, content that is more factual in nature is more likely to be a fair use of the work than those based on creative ideas.

Amount and substantiality of the portion used in relation to the copyrighted work as a whole: 

Generally, the less of someone’s work you use the better as far as fair use is concerned. Copying a whole character from a video game or movie poster is a risky business that will generally weigh against your use being fair, even if you have edited it in Photoshop with some filters or effects.

Effect of the use upon the potential market for or value of the copyrighted work:

By deciding to use somebody’s work to create your own, you might (even unwittingly) make its owner look bad or make it more difficult for the owner to sell their own works. It’s called competition, and the copyright holder could feel threatened by your activities. The greater the risk that your work will negatively impact the market for the owner, the more likely your use will not be a fair use.

While we hope the above information helps you get a sense for whether your artwork is a fair use, as you can probably tell it is not always an easy question. So keep in mind that this blog post is not legal advice. We don’t know what fair use regulations are valid in your country and we don’t have the legal knowledge or experience to determine whether your specific artwork is a fair use or not. But we are sure that it’s so much better to create 100% original work than taking a risk. Additional information on fair use can be found at the U.S. Copyright Office’s website at the link below:

What is fan art and how can I sell it?

Everyone is a fan of something. Be it a movie or a book, they can inspire many of us to create pieces of art as a tribute to iconic movie characters, scenes, or quotes.

And while your fan art may give those existing characters, scenes, or quotes a new form or context, those existing characters, scenes, or quotes have their own legitimate owner. And unless the owner’s copyright has expired, those works will be protected by those copyrights, limiting the use of the work in most cases.

Don’t get us wrong. We understand that fans often You can want to create fan art and you can to be inspired by someone’s else creation in your own work. However, the ability to publish that fan art online or elsewhere or to sell those creations is limited and will depend on specific factors, like those for fair use discussed above. And while many of these copyright holders happen to tolerate fan art, or in some instances even celebrate it, that does not mean all such copyright holders share that view or that your fan art will be in the clear. So unless you have permission from the owner of the other person’s creation to use their work, it’s important to get the advice of a lawyer before selling your own work.

Remember—it’s always better to create your own, original artwork. Only in this way can you be sure to avoid the risk of being accused of infringing the copyrights.

Pro tip: If you’re thinking of using somebody’s work, try researching their website or the U.S. Copyright Office’s website for any copyright information. You will most likely find information on what terms the content can be used. Most of the holders won’t allow commercial use, but there are cases when they give consent under certain conditions, so read everything carefully! 

Can I use other people’s photos for photo manipulations?

It depends. If you obtain the photo from legal sources, such as from the owner themselves or from a website or service that makes the images available for purchase, you are probably in the clear. But be careful. While many websites will offer “stock” images available for free download, you will often be asked to agree before downloading the image that you will not use it for a commercial purpose. Make sure to always read the fine print, and if you aren’t sure, reach out to the website or a lawyer for clarification on how you can use the photo.

You might have once heard that if you change a particular percentage of somebody’s work, you can call it yours = use it for commercial purposes. Well, it’s not that simple. The cases are different from each other, and as the factors for fair use demonstrate, it won’t always be clear. Which is why we emphasize that getting legal advice is the safest thing to do here.

Wanna be sure about your future creations?

  1. Take your own photos and use them
  2. Use photos with expired copyrights
  3. Search for public domain photos (for commercial purposes if you wanna sell your work)
  4. Get permission from the owner of the photo.

Can I upload artwork I found on Google?

Google or any other search engines are not public domains. In other words, just because you were able to find and maybe even download an artwork or photo from one of these search engines, that does not mean its free to use without the proper permissions. These photos may still be protected by copyright and your use of them will still be limited, such as to instances of fair use as we noted above. And this may be especially true if you want to use what you found through the search engine on something you yourself want to sell.

Think of it this way. You upload a photo of your dog on Facebook. You love this dog and would never give it away to anyone in the world. Due to the magic of search engines, someone finds your cute little puppy, thinks it’s cute too, and tries to sell the picture of it on a number of websites. Does he have a right to use it? No. You didn’t agree with that. Your dog didn’t agree with that.

What about parody and satire?

The difference between parody and satire is their purpose. A parody is created to comment on the original artwork, while a satire uses the original artwork to comment on something else (event, person, etc.). While these may seem very similar, parodies are generally considered more likely to be considered a fair use, while satires are generally considered not to be. Of course, determining whether either a parody or satire will be a fair use is a legal question that will depend on the specifics of each particular situation. As always, the safest approach is to talk to a lawyer or get permission of the copyright owner before selling your artwork.

Important disclaimer

The information provided in this post is in no way legal advice, nor is it intended to be. We want to give you a general idea of what fair use is and when and if fan-art is permitted. If you want to know more reach out and talk to people who know all about copyright law, like a licensed attorney. Moreover, keep in mind that copyright laws change from country to country, and which country’s law matters to you will depend on where or how you use your artwork. So it’s important to seek legal advice from professionals in the field before making the decision to sell your artwork if it is based on another’s existing work.

You have to remember that by uploading any content you don’t have the rights to, you violate our Terms and Conditions, which includes a zero tolerance policy for infringing others intellectual property rights. Violation of these Terms and Conditions can result in a user being permanently banned from the site. 

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